Just a little bender on the defamation laws to consider.
Supreme Court of Canada – Grant v. Torstar Corp.: Responsible communication on matters of public interest
The Court first recognized that the tort of defamation places limits on Freedom of Expression guaranteed under s. 2(b) of the Charter of Rights and Freedoms, but that limit should not go as far as to place a ‘chill’ on expression.
It then determined that four issues needed to be resolved:
- Should the common law provide a defence based on responsible communication in the public interest?
- If so, what are the elements of the new defence?
- If so, what procedures should apply? In particular, what are the respective roles of the judge and jury?
- Application to the case at bar
1. Fair comment
2. Responsible communication
Responsible communication defence
After examining arguments both for and against the defence, McLachlin found that the defence should exist so as to not chill speech. She found that the defence helped to strike the proper balance between rights of free expression, as protected in the Charter, and the rights of privacy and protection of reputation. She also found justification in the ruling supported by the emerging recognition given to the defence in other common law states.
Elements of the defence
First, McLachlin stated that the defence of responsible communication was a new defence, and not a modification of qualified privilege. She then ruled that defence should be known as ‘responsible communication’, as it is not only journalists who should benefit from the defence, but bloggers and other people who disseminate information regardless of their status in established media.
McLachlin found that two conditions must be met for the defence of responsible communication to apply:
- The matter must be one of public interest.
- The defendant must show that he acted responsibly, in that he showed diligence in attempting to verify the allegedly defamatory comments, having regard to the totality of the circumstances.
In determining whether the defendant acted responsibly, she found a court should consider:
- The seriousness of the allegation
- The public importance of the matter
- The urgency of the matter
- The status and reliability of the source
- Whether the plaintiff's side of the story was sought and accurately reported
- Whether inclusion of the defamatory statement was justifiable
- Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“Reportage”)
She noted that this list was not exhaustive, but served merely as a guideline. A court is free to consider other factors as well. As well, the factors should not all be given equal weight.
